Armstrong v Hastings Valley Motorcycle Club Ltd

[2005] NSWCA 207

CITATION:	Armstrong v Hastings Valley Motorcycle Club Ltd & Anor [2005] NSWCA 207
HEARING DATE(S):	11 March 2005
JUDGMENT DATE:	20 June 2005
JUDGMENT OF:	Handley JA at 1; Beazley JA at 49; Hodgson JA at 50
DECISION:	1. Appeal allowed with costs; 2. Judgment of the Common Law Division set aside; 3. Order that there be a new trial of the action limited to the appellant's claim for damages for negligence at common law; 4. Liberty to apply to Handley JA on reasonable notice for orders under SCR Pt 51 r 23(5); 5. Respondents to have a certificate under the Suitors Fund Act 1951

CATCHWORDS:	STATUTORY DUTY - mere licensing provision - specific precaution for the safety of others not required - actionable statutory duty not created - STATUTORY DUTY - condition in statutory licence - actionable statutory duty not created - STATUTORY DUTY - administrative direction by public official - actionable statutory duty not created - D
LEGISLATION CITED:	Motor Vehicle Sports (Public Safety) Act 1985 (NSW) Motor Vehicle Sports (Public Safety) Regulation 1994 (NSW)
CASES CITED:	Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 Day v Perisher Blue Pty Ltd [2004] NSWCA 110 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Leask Timber & Hardware Pty Ltd v Thorne (1961) 106 CLR 33 McDonald v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768 O'Connor v S P Bray Ltd (1937) 56 CLR 464
PARTIES:	Gavin Armstrong (Appellant) Hastings Valley Motorcycle Club Ltd (First Respondent) Geoffrey Joseph Miles and Janice Dianne Miles (Second Respondents)
FILE NUMBER(S):	CA 40249/04
COUNSEL:	D A Wheelahan QC/A Johnson (Appellant) G Miller QC/P See (Respondents)
SOLICITORS:	Paton Hooke (Appellant) Ebsworth & Ebsworth (Respondents)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20674/01
LOWER COURT JUDICIAL OFFICER:	Master Harrison

40249/04

HANDLEY JA
BEAZLEY JA
HODGSON JA

20 JUNE 2005

GAVIN ARMSTRONG v HASTINGS VALLEY MOTORCYCLE CLUB LTD

& ANOR

CATCHWORDS

STATUTORY DUTY – mere licensing provision – specific precaution for the safety of others not required – actionable statutory duty not created

STATUTORY DUTY – condition in statutory licence – actionable statutory duty not created

STATUTORY DUTY – administrative direction by public official – actionable statutory duty not created

FACTS

The appellant sued the respondents for damages alleging negligence as a result of a collision in a motor-cross race conducted by the first respondent at the second respondent’s racing ground. The Master dismissed the action. On appeal the appellant raised for the first time the argument that the respondents had breached their statutory duty under s 8(1) of the Motor Vehicle Sports (Public Safety) Act 1985 and the appellant had a private right of action in damages. The appellant also alleged that the respondents had been negligent in allowing substantial trees to remain near the edge of the track, without having adequate safety barriers in place. The appellant argued that the Master failed to make necessary findings of fact, and had given inconsistent reasons. HELD: Allowing the appeal and ordering a new trial of the common law claim (1) The appellant could rely on a breach of the Act as the relevant facts had been fully explored at the trial; (2) Breach of s 8(1) did not confer a private right of action in damages. It was a mere licensing provision which did not prescribe a specific precaution for the safety of others; (3) An action for breach of statutory duty could not be maintained for breach of a condition in a statutory licence or for breach of an administrative instruction by a public official; (4) The Master failed to make critical findings of fact, or to explain why she did not have to do so. Her reasons also contained a material contradiction which was not explained.

ORDERS

(1) Appeal allowed with costs.

(2) Judgment of the Common Law Division set aside.

(3) Order that there be a new trial of the action limited to the appellant’s claim for damages for negligence at common law.

(4) Liberty to apply to Handley JA on reasonable notice for orders under SCR Pt 51 r 23(5).

(5) Respondents to have a certificate under the Suitors Fund Act 1951.

40249/04

HANDLEY JA
BEAZLEY JA
HODGSON JA

20 JUNE 2005

GAVIN ARMSTRONG v HASTINGS VALLEY MOTORCYCLE CLUB LTD & ANOR

Judgment

1 HANDLEY JA: On 13 July 1997 the appellant, then aged 16, was injured during a motor-cross race at Molly Milligan’s Motorcycle Racing Ground in the Hastings Valley near Port Macquarie. He was involved in a collision with other competitors and was thrown from his motorcycle hitting a tree at the side of the track. He was wearing a safety helmet but suffered serious injuries. He sued the Hastings Valley Motorcycle Club Ltd (the Club) which conducted the race meeting, and the owners and occupiers of the property. His statement of claim alleged negligence in 18 particulars. These included conducting an unlawful race meeting in contravention of the Motor Vehicle Sports (Public Safety) Act 1985 (the Act) and in contravention of the rules of Motorcycling (NSW) Inc.

2 Following a trial that lasted 14 days Master Harrison, in a reserved judgment, dismissed the plaintiff’s action and entered judgment for the defendants. The plaintiff appealed. Before this Court the allegations of negligence were narrowed and focussed on the presence of large trees close to the edge of the track where the collision occurred. The plaintiff still relied on the unlawfulness of the race meeting and the contravention of the rules of racing, but these allegations were directed to the presence of large trees close to the track.

3 The appellant relied for the first time on a cause of action for breach of statutory duty based on the contravention of the Act relied on at the trial. Mr Miller QC, who appeared for the respondents properly conceded that the appellant was entitled to take this new point of law as the relevant facts had been fully investigated at the trial. The allegation of breach of statutory duty raises a discrete question which can conveniently be considered at the outset.

Breach of statutory duty

4 Section 8(1) of the Act prohibits a meeting for motor vehicle racing unless the motor vehicle racing ground is the subject of current licence and the meeting is conducted in accordance with the licence and its conditions. Sub-section (2) imposes a penalty not exceeding $2000 for breach. Licences are issued by the Minister for a term not exceeding one year (s 5) on application by a person having a prescribed interest in the land (s 4). For the purposes of the Act a motorcycle is a motor vehicle (s 3). Part 3 of the Act which previously required organisers to obtain a permit for each race meeting was repealed by the Regulatory Reduction Act 1997 sch 1 cl 1.8 which commenced on 7 February 1997.

5 The racing ground was last licensed on 18 October 1996 (blue 1/138-44) but the licence expired on 30 June 1997 and had not been renewed before the meeting on 13 July.

6 The Motor Vehicle Sports (Public Safety) Act 1985 Regulation 1994 provided for the issue and renewal of licences and the prescribed conditions. Conditions 1 & 2 required licensees to have and maintain public insurance cover with an approved insurer. The expired licence contained the prescribed conditions 1-11 and the Minister had imposed additional conditions 12-23. Condition 23(h) required every event to be held in accordance with the rules and regulations of Motorcycling NSW Inc, under its control and supervision.

7 On 26 March 1997 the Club was reminded by the Department that its licence would expire on 30 June (1/148). An application for renewal dated 26 May was received by the Department on 2 June, but the police did not inspect the track before the licence expired. The Club had a permit from Motorcycling NSW Inc for the meeting (1/151).

8 Mr Wheelahan QC, who appeared for the appellant, relied on the breach of s 8 as founding a cause of action for breach of statutory duty. He did not rely on breach of any of the conditions of the expired licence. It does not appear that any were relevant, but in any event the licence had expired, the conditions were not in force at the time of the meeting, and there could be no breach of the conditions as such.

9 Reliance was placed on John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 in support of the submission that a breach of s 8 created a private right of action in favour of any one injured during motorcycle racing at an unlawful meeting. Mr Wheelahan’s submissions on causation were based on the report of Sergeant Carrero from Port Macquarie Police who inspected the race track for licensing purposes on 28 July 1997 after the accident. His report stated (blue 1/19):

“After carrying out the inspection it is my opinion that a safety hazard is present around the perimeter of the track and its interior [south]-east section. Dense vegetation is present and in close proximity to the track, certainly well within the safety guide of 20 metres.

This vegetation and that of the inner section of the [south]-east loop contains trees of a substantial size trunk. No barriers protect the riders from these trees in case of a collision.

It is therefore my recommendation that either the vegetation be removed or safety barriers such as tyres be provided for the protection of riders. If the vegetation was to be cleared it would involve clearing an area of at least 30 metres around the perimeter of the track and total clearance of the inner section.”

10 The racing ground had previously been licensed for various periods and for that purpose had been inspected by Sergeant Johnson on 28 May 1993 and by Sergeant Cleaver on 15 November 1994, 19 April 1995 and 4 June 1996. No requirements such as those proposed by Sergeant Carrero had previously been imposed (blue 2/171-5). The Act does not require a police inspection before a licence is granted or renewed although s 13(1)(b) and (c) permit the Minister to delegate the exercise of his functions under the Act and the Regulations to the Commissioner of Police or the holders of specified positions in the Police Force. No such delegations were proved.

11 Clause 27(1) of the 1994 Regulation authorised a police officer to inspect a racing ground to ascertain whether the licensee is complying with the Regulation and the conditions of his licence. There was no corresponding provision dealing with inspections in connection with the grant or renewal of a licence.

12 Section 17(1)(g) of the Act empowered the Governor to make regulations prescribing “requirements in respect of track construction, safety fences and devices, fire precautions, amenities and other matters in connection with motor vehicle racing grounds”. It was not suggested that any relevant regulation existed or had been breached.

13 The general principles which determine whether a statute or regulation creates a statutory duty enforceable by an action for damages were stated by Dixon J in O’Connor v S P Bray Ltd (1937) 56 CLR 464, 477-8. The critical passage for present purposes is:

“Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which if forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.”

14 Neither the Act nor the Regulation prescribe “a specific precaution for the safety of others” which “define[s] specifically what must be done in furtherance of the general duty to protect the safety of those affected”. They create a general licensing scheme. The prescription of specific safety precautions was left to the discretion of the Minister who had power under s 6(b) to impose conditions on a licence. No relevant conditions were imposed prior to this accident, and it is not necessary to determine whether an ad hoc condition validly imposed by the Minister, on the last expired or current licence, could support a statutory duty enforceable by an action for damages.

15 We were not referred to any case where an action was maintained for breach of a condition in a statutory licence, or for breach of an instruction by a public official in the administration of a licensing scheme. The High Court has held that statutory duties enforceable by an action for damages can be created by statutory regulations. See Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36, 55-6 and Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89, 97-8. It does not follow that the same effect should be given to conditions imposed on a statutory licence or directions given by public officials pursuant to statutory authority.

16 In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 the High Court declined to hold that a Federal award made under the Industrial Relations Act 1988 created a statutory duty enforceable by an action for damages. The joint judgment of Gummow and McHugh JJ suggests that the action for breach of statutory duty will not be extended to other duties imposed under statutory authority. They said (461-2):

“We have referred to the rather special juristic nature of the Award. Even where the duty in question is created by delegated legislation in the form of regulations made under power conferred on the Executive by statute, there is an added difficulty in discerning the existence of a civil sanction for breach. The question then, as Fullagar J pointed out in Darling Island Stevedoring & Lighterage Co Ltd v Long is whether the statute gives power to create by regulation duties enforceable by action at the suit of a person injured by breach thereof. If the statute does not expressly confer on the Executive a power by regulation to create an action for damages at the suit of any person injured by breach of the substantive provisions of the regulations, it must be difficult to construe the statute and the delegated legislation as impliedly bringing about that result. This must be so, perhaps a fortiori, where the silent statute operates upon an award made by an arbitral body established by the statute.”

17 The only foothold for a statutory duty in this case is the requirement in s 8(1) for motor racing grounds to be licensed. If the section did create a statutory duty the appellant would still face considerable difficulties on the issue of causation because the racing ground had been licensed during the previous four years without any requirement for the trees to be removed from areas close to the track.

18 In Leask Timber & Hardware Pty Ltd v Thorne (1961) 106 CLR 33 the High Court held that s 17 of the Scaffolding and Lifts Act 1912 which required drivers of power cranes to hold a certificate of competency did not create a statutory duty enforceable by an action for damages. In John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Mason J referred at 228-30 to the judgments of Dixon CJ and Kitto J in that case and said that they reflected (230) “the reluctance that has generally been expressed by lawyers and philosophers to identify the want of a licence or a certificate on the part of the driver of a vehicle or the operator of a machine as a cause of an injury resulting from his negligent driving of the vehicle or negligent operation of the machine”. At 231 he referred again to the reluctance on the part of the courts to find that the prohibition on driving a motor vehicle without a licence created a private right of action.

19 In that case Regulation 118B(1)(b) prohibited an employer from employing or allowing any person to use an explosive power tool without ensuring that the operator was qualified and not unfit to use it. The Regulation was held to create a statutory duty sounding in damages because it required employers to take specific precautions to prevent injury resulting from the incompetent use of such a tool.

20 Brennan J referred (240) to the conclusion of Kitto J in Leask Timber that s 17 did not restrict the driving of power cranes to competent and trustworthy persons but provided for “a governmental check upon the competency and trustworthy of drivers”, which was “a mere licensing provision”. On the other hand Regulation 118B(1)(b) was not concerned with the licensing of operators (240) but prescribed “a specific precaution” which added to the duty imposed by the general law (242). See also generally McDonald v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768 paras [168-78] and “New Forms of the Tort of Breach of Statutory Duty” (2004) 120 LQR 324.

21 In my judgment s 8(1) does not create a statutory duty actionable in damages because it is “a mere licensing provision”, providing for a “governmental check” on motor racing grounds, and it does not prescribe any specific precaution to be taken by the organisers or occupiers. The claim for breach of statutory duty fails.

Common law negligence

22 The other grounds of appeal allege that the Master had not made necessary findings of fact and had not given proper reasons for her decision. The appellant’s claims in negligence that are still pressed are that the presence of substantial trees close to the track, particularly near the first hairpin bend, was a hazard in the absence of substantial barriers or safety devices for the protection of riders who might be thrown from their motorcycles.

23 The Master said [para 6] that in order to ascertain whether the plaintiff had established his case “it is necessary to determine with precision the particular tree the plaintiff collided with, if he did in fact collide with a tree”. She found that there is “a fair degree of potential danger involved in motor-cross racing” and that a rider is commonly thrown off his bike [para 12]. However the plaintiff, although only 16, was an experienced motor-cross rider [para 18]. The witnesses who had been present during or immediately after the first race attempted to identify where the plaintiff had come to rest after he had been thrown from his bike. The locations varied markedly [para 15]. The Master said [para 21]:

“There is a critical factual dispute, the resolution of which will ultimately determine the outcome of these proceedings. If the plaintiff came to rest where the defendants’ witnesses say, the plaintiff’s case fails on liability. If the plaintiff came to rest where Mrs Armstrong, Messrs Lamb, Pettit and Flannigan say, the plaintiff will succeed on liability. I have found my task of fact finding difficult due to the fact that the accident occurred within seconds, it was very noisy and dirt and dust would have impaired clear vision. Furthermore, many of the witnesses were first asked to recall the accident many years after the accident occurred.”

24 The Master reviewed the evidence of each witness who was present when the accident occurred or soon afterwards [paras 25-95]. Eleven of the defendants’ witnesses had attended a “surveying excursion” on the site not long before the trial when they attempted to identify where the plaintiff had come to rest. The Master thought their evidence may have been “subtly influenced” by the versions given by others and she should give it lesser weight [para 24]. She also said that she had rejected or discounted the evidence of Mr Fulton [para 31], Mr Miles [para 68], Mr Moffatt [paras 79-80] and Mr Cole [para 93].

25 She reviewed the relevant evidence and made findings about the accident [paras 96-9]. She found that collisions were ordinary incidents of motor-cross racing and that negligence in this respect had not been established [para 98]. She said the plaintiff’s bike cartwheeled and he went over the handlebars and hit a tree head first at a height of about 1 to 1½ metres above the ground and his body then came to rest near the butt of a large tree [para 99]. She had earlier accepted Mr Lamb’s evidence that he had seen the plaintiff hit a tree [para 51].

26 She reviewed the evidence about the location of the tree [paras 100-4]. This was the issue which she had previously said had to be decided [para 6], and would determine the outcome of the proceedings [para 21]. She again referred to the need to make “critical findings” about where the plaintiff came to rest and the location of the tree [para 99].

27 Under the heading “The location of the plaintiff” she again reviewed the evidence on this issue [paras 100-4]. In doing so she considered [para 101] the evidence of Mr Moffatt and Mr Miles whose evidence she had earlier discounted or rejected [paras 68, 79-80]. She referred to the evidence of six witnesses, including Mr Moffatt, who said the plaintiff came to rest opposite what was known as the Pee Wee track, closer to the start line, and found that their evidence on this issue was incorrect [para 104].

28 The Master concluded this part of her judgment without making other findings or the critical finding, and then considered the expert evidence. Mr Schnerring, based on photographic evidence, said that some large trees were only about one metre from the edge of the track near where the plaintiff finished up [para 105]. Sergeant Carrero, who inspected the track after the accident, said that there were trees within 2 metres of the track near the start of the hairpin bend [paras 106-7]. Mr Keramidas agreed that a group of trees near where the Master found the crash occurred were within 3 metres of the track and that it was foreseeable that someone could hit those trees in the course of an accident. He accepted that action should have been taken to remove the smaller of two trees where Mrs Armstrong said the accident occurred but the Master was not able to find that the plaintiff hit that tree [para 113].

29 The Master then made the following findings [para 115]:

“… the plaintiff was lying near the butt of a large tree possibly with his legs as close to 1 to 2 metres from the tree. Even if I was to find that the plaintiff came to rest in the position indicated by Mr Lamb, I could not on the balance of probabilities identify the precise tree with which the plaintiff collided. On the preponderance of witness evidence, I am unable to find on the balance of probabilities which tree the plaintiff hit, nor am I satisfied that the tree was in fact within 2 to 3 metres off the edge of the track. I have reached the conclusion, that the plaintiff has not proved on the balance of probabilities, firstly, which tree he hit and secondly, that the distance of the tree was within 2 to 3 metres from the edge of the track.”

30 She held that there should have been a clear zone of 2 to 3 metres from the edge of the track and said that “at the place where the plaintiff came to rest, the tree that the plaintiff hit was not located within the 2 to 3 metre clear zone” [para 120]. She concluded that “the trees”, which presumably included the one the plaintiff hit, were further back than 3 metres from the edge of the track and did not require protective barriers around them [para 121].

31 The Master made no adverse credit findings against Mrs Armstrong [paras 44-6] although she may have rejected her evidence of where the plaintiff’s body was lying in relation to the start line and a small crest on the track [para 114]. However this finding was not significant. What was significant was the distance the plaintiff was from the edge of the track and where the tree was that he hit.

32 Mr Pettit was an ambulance officer who came to take the plaintiff to hospital. He said that his body was 10 feet from the edge of the track. The Master made no adverse credit findings against Mr Pettit [paras 73-4].

33 Mr Flannigan was a competitor who had a slow start because his motorcycle stalled, and was at the back of the field. He stopped and went to the aid of the riders, including the plaintiff, who had been thrown form their motorcycles. He said that the plaintiff was lying about 3 to 4 feet from the butt of a large tree which was 3 metres from the tyres at the edge of the track [paras 25-6]. The Master made no adverse credit findings against Mr Flannigan.

34 Mr Lamb, another independent witness, who was to compete in a later race, had positioned himself to get a clear view of the hairpin bend to see how the riders dealt with it. He saw the accident which took place about 150 metres from the start line and saw the plaintiff hit a tree 2 to 3 metres off the track. He could no longer identify the particular tree, but said that the plaintiff’s legs were close to the tree he hit, which was 2 to 3 metres off the track [para 51].

35 Mr Lamb ran to help the plaintiff, rendered first aid and immobilised his head and neck until the ambulance officers arrived. He noticed that the plaintiff’s helmet had scuffmarks on it. The Master made no adverse credit findings against Mr Lamb and accepted parts of his evidence [paras 48-53].

36 The witnesses who placed the plaintiff’s body at the correct distance from the start line, as found by the Master, included Mr Lamb and Mr Flannigan. The other witnesses who placed the plaintiff at this distance, but further away from the edge of the track were Messrs Rawson, Jones, Cole, Ramsay, Dixon and Hollis and Mrs Dixon [para 104]. The Master had earlier expressly rejected the evidence of Mr Cole about the position of the plaintiff as unreliable and unsafe [para 94] and his evidence on this topic should have been ignored.

37 Messrs Rawson, Jones, Ramsay, Dixon and Hollis and Mrs Dixon had been involved in the surveying excursion when they had attempted more or less, as a group, to identify where the plaintiff had come to rest [para 23]. The Master had said that she would give “lesser weight” to their evidence, but does not have appear to have reminded herself about this when she came to make a finding about the position of the plaintiff [paras 104, 113, 115]. Compare Day v Perisher Blue Pty Ltd [2004] NSWCA 110 paras [34-5].

38 The Master made adverse credit findings, in one degree or another, against all the witnesses who located the plaintiff at the correct distance from the start line, other than Messrs Flannigan, Lamb and Hayller. Mr Hayller did not see the accident, and did not see that plaintiff on the ground but saw a group of people on the left hand side of the track where the plaintiff was about 1 to 2 metres in from the edge [paras 32-4]. The Master found that he had an unimpeded view. His evidence was not inconsistent with that given by Mr Lamb.

39 Mr Lamb was twice recalled to give further evidence. He said on the first occasion that the tree that the plaintiff hit was 2 to 3 metres off the track, and there was a group of trees in the vicinity which were close together (black 1/128). He saw the plaintiff virtually flip and go backwards (1/129). When he got to where the plaintiff was lying his legs were in the vicinity of the tree that he hit (ditto). Mr Lamb said that he “cannot identify any particular tree that he came into contact with” (1/141-2, 1/233). He saw the plaintiff hit the tree from 30 to 50 metres away (1/233).

40 He was recalled a second time to be shown a video of a race meeting the year before the accident. He said that as one got closer to the hairpin bend the trees are quite close to the track (2/271, 272). The tree the plaintiff hit was not on the bend (2/273). The trees where he landed were 2 to 3 metres from the track (2/273, 274). When asked how far back from the corner was “his tree” he said, with reference to the video, “I can show you the trees that he went into” and he did so on the screen, identifying a clump of three or so trees (2/278).

41 Mr Miller properly conceded that there was nothing he could point to in the evidence of Mr Lamb which would provide a basis for devaluing his evidence (T 46 (25 & foll)) and having read it I must agree.

42 The Master gave no reasons for not accepting the evidence of Mr Lamb and Mr Pettit and it is even possible she accepted it. There are other problems with her reasons. In para 21 she said:

“If the plaintiff came to rest where … Messrs Lamb, Pettit and Flannigan say, the plaintiff will succeed on liability.”

43 However in para 115 she said:

“Even if I was to find that the plaintiff came to rest in the position indicated by Mr Lamb, I could not on the balance of probabilities identify the precise tree with which the plaintiff collided.”

44 There is a contradiction between these paragraphs which was not explained.

45 The Master also appears to have misunderstood Mr Lamb’s evidence. He did identify the tree because he said that the plaintiff hit it, did a flip and went backwards and his legs were in the vicinity of the tree he hit (1/129). It was one of a group of trees, close together (1/128) which he identified on the video as the trees the plaintiff went into (2/278).

46 What Mr Lamb could not do was identify the tree from photographs or the video. However, with respect to the Master, Mr Lamb’s evidence did identify “the precise tree with which the plaintiff collided” as the one close to his feet where he lay (compare para 115). There was no need for further identification. It was enough that Mr Lamb could identify it as one of small clump of substantial trees which Mr Lamb said was 2 to 3 metres off the track.

47 The Master misdirected herself that the plaintiff had to identify the precise tree and misunderstood the evidence when she said [para 115] that even if she accepted the evidence of Mr Lamb she could not find for the plaintiff. This was inconsistent with what had been stated earlier in her reasons [para 21] when she said that if the plaintiff came to rest where Mr Lamb said he did the plaintiff would succeed.

48 The Master has failed to make what appear to be critical findings of fact or to explain why she did not have to make such findings. In the light of these conclusions the Court has no option but to order a general new trial. It is unfortunate that a trial lasting 14 days has failed to yield a result, and there has to be a new trial. However there may be some scope for orders under SCR Pt 51 r 23(5), if the parties cannot agree, which would limit the issues on the new trial and make it unnecessary to recall all the witnesses. The following orders should be made:

(1) Appeal allowed with costs.

(2) Judgment of the Common Law Division set aside.

(3) Order that there be a new trial of the action limited to the appellant’s claim for damages for negligence at common law.

(4) Liberty to apply to Handley JA on reasonable notice for orders under SCR Pt 51 r 23(5).

(5) Respondents to have a certificate under the Suitors Fund Act 1951.

49 BEAZLEY JA: I agree with Handley JA.

50 HODGSON JA: I agree with Handley JA.

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